Domestic Violence Cases in California

Domestic Violence cases are common prosecutions in California Criminal Courts. If the police are called to a "domestic dispute" many agencies still follow a protocol that they must make an arrest, regardless of the wishes of the victim. Cases range from very serous injury to no injury at all, but one party will almost always be booked, usually for a felony, and made to post bond.

Prosecution agencies are usually aggressive in seeking convictions (even though the 1990's were worse) and many individuals have entered into a settlement of a case that resulted in conviction for domestic violence (also commonly called "DV") offenses.

These cases can be expunged, and felony cases reduced to a misdemeanor and then expunged, so long as no state prison time was imposed.

The most common convictions are:

Penal Code 273.5 Corporal Injury to a Spouse or Cohabitant. This requires a "traumatic condition" that can be as minimal as red mark or slight swelling or a bruise. This can be a felony or misdemeanor.

Penal Code 243(e)(1) Domestic Battery. This includes a cohabitant, the parent of your child, your current or former spouse or a dating partner. Unlike Penal Code 273.5, this law does not require a visible injury.

Penal Code 422 Criminal Threats. This involves a threat of serious harm to someone if you intend to put the person in fear, and the threat actually did put the person in fear. This offense may be charged as a misdemeanor or a felony.

Firearms Issues

If you were convicted of misdemeanor domestic violence, there is a 10 year prohibition from the state of California under Penal Code § 12021 c 1. Obtaining an expungement does not reinstate firearms rights.

Under Federal Law there is also a lifetime prohibition from the United States government (Lautenberg Amendment to the Violence Against Women Act enacted in 1996) which prohibits firearm ownership of those convicted of misdemeanor domestic violence. Expungement in California does not lift the federal prohibition.

There are some differences between the Federal and California definitions of misdemeanor domestic violence.

Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

(2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

(b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 12001.6, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

(c) (1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9,646.9, 12023, or 12024, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision....

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